Monday, August 20, 2018

Rudy Giuliani's absurd "truth isn't truth" statement may be a sign of creeping totalitarianism, and we've seen it brewing in courtrooms for roughly 18 years

NBC's Chuck Todd (left) reacts to Rudy Giuliani's proclamation
that "truth isn't truth"
Rudy Giuliani might have dropped the most memorable (and absurd) statement of the Trump era yesterday when, in reference to a possible interview involving the president and Special Counsel Robert Mueller, he said "Truth isn't truth."

The statement almost drew a guffaw from Chuck Todd, host of MSNBC's Meet the Press. (The Todd/Giuliani interview is embedded at the end of this post.) Richard Painter, Trump critic and former White House ethicist under George W. Bush, said such attempts to distort the truth are a sign of totalitarian leadership in the making. Here is Painter from an interview with Al Sharpton yesterday on MSNBC's AM Joy. (See YouTube video, starting at the 23:20 mark.):

This is a rehash of what Kellyanne Conway said when she talked about "alternative facts." There is such a thing as objective truth. And those on the extreme left and extreme right have consistently attacked the notion of objective truth. This is the way Hitler talked in his political campaigns. This is a distortion of the truth, combined with extreme racism and extreme religious bigotry. It is very dangerous for our country. The White House is not going to fix this problem. It is up to the United States Congress to address it. The Constitution has an impeachment clause. The Congress is not investigating. It is their obligation to hold hearings. . . . They aren't doing anything; they are sitting on their rear-ends, griping about Hillary Clinton's emails and the FBI. I hope voters throw every last one of them out the door.

We have come to admire Painter as a rare voice of Republican reason and integrity. But we know from firsthand experience that distortion of the truth did not start in the United States with Donald Trump's rise to power. We've seen it in Jeff Sessions' Alabama and Eric Greitens' Missouri -- especially in courtrooms, where the equivalent of  "truth isn't truth" might be "facts aren't facts and law isn't law."

We could give at least a half dozen examples, but let's focus for now on the case that started our legal headaches -- the criminal trespassing case we brought against Mike McGarity (the troublesome neighbor and Blue Cross and Blue Shield of Alabama employee) who threatened to sue us for attempting to protect our own property rights and refused to stay off our yard despite what he admitted were repeated warnings.

Ron Jackson, former Shelby County district judge, found McGarity "not guilty" of the offense, even though he admitted to committing it. We're not kidding -- the guy was acquitted after admitting he was guilty as charged, and that gave McGarity grounds to sue us for a disfavored tort called malicious prosecution. It essentially refers to a case, either criminal or civil, that is brought without probable cause (or probable grounds). We had not only probable cause, we had actual cause, so no reputable attorney would have filed such a case. But McGarity managed to get a disreputable attorney -- William E. Swatek, with his long disciplinary history via the Alabama State Bar -- and that lawsuit cost us tens of thousands of dollars, led to us being cheated out of jobs, me being kidnapped and thrown in jail, my wife Carol's arm being broken, etc.

How badly were the facts, law, and truth distorted in our criminal trespassing case against McGarity? We addressed that in a post from October 2016:

Our legal woes started when we had the misfortune of having a career criminal named Mike McGarity move in next door to us. Our charming neighbor apparently hid his ugly past during the job screening process at his employer, Blue Cross and Blue Shield of Alabama. (In blunt terms, he likely lied on his job application, and the lax process at BC/BS let him get away with it.)

McGarity, his kids, and guests -- having already sassed us when we asked him to keep his barking coon hound under control ("You just need to get earplugs") -- proceeded to trespass on our property on an almost daily basis. When we called to let McGarity know his presence was not welcome on our yard, McGarity replied, "I'm going to sue you for harassment" and "we're going to keep on coming,"

When we asked a Birmingham lawyer named Bill Lewis to write a letter, explaining the law to this dunderhead, it seemed to have no effect. The trespassing continued, and the last line of Lewis' letter was, "You will receive no more warnings."

With all that in mind, we felt we had no choice but to pursue a case against McGarity for criminal trespassing, third degree. The alternative was to wait until someone got hurt on our property, have them sue us, and watch our homeowners-insurance premiums go through the roof. (Allowing trespassers to freely roam your property is a bad idea, for a lot of reasons, perhaps the biggest one is financial.)

The "Giuliani moments" came when the case hit the courtroom:

District Judge Ron Jackson had encouraged both parties to work out a settlement, but McGarity refused to discuss it. That meant the case went to trial, and a transcript shows that McGarity confessed to the crime as charged. How do we know? Well, the elements of criminal trespassing, third degree, are about as straightforward and simple as law gets. Here they are, straight from Code of Alabama 13A-7-4:

Mike McGarity
(1) "A person commits the crime of trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises."

(2) "A person enters or remains unlawfully in or upon premises when he is not licensed, invited or privileged to do so."

Our research indicates "licensed" refers to someone who has a professional reason to enter property, such as a meter reader. "Privileged" refers to someone who tries to address an unexpected occurrence. For example, if your hat flies off your head and lands in my yard, you have a right to retrieve it. "Invited," as it sounds, refers to someone who who has a good relationship with the owner and has reason to believe he is welcome to enter.

The transcript shows that McGarity admitted to entering our property, he made no claim to being licensed or privileged, and he made no claim that he was welcome. In fact, he admitted we had verbally warned him multiple times to stay off our property, along with others entering from his yard. Translation: McGarity admitted to the crime of criminal trespass, third degree.

How nutty can this stuff get? Imagine O.J. Simpson admitting in court that he killed Nicole Brown Simpson and Ron Goldman, only to have Judge Lance Ito rule, "In this case, I'm going to acquit." Judge Jackson did the equivalent of that in our case -- proving that he lives in GiulianiVille, a land where "truth isn't truth," "facts aren't facts," and "law isn't law":

Judge Jackson, however, found that -- in this instance -- we had to give McGarity written warning. We did that, of course, in the form of Bill Lewis' letter. But a woman from Lewis' office testified that she could not find the certifield-mail receipt that proved when McGarity received the letter. McGarity claimed he had not received the written warning prior to trespassing, and Jackson found that created enough reasonable doubt to acquit -- even though the judge essentially read McGarity the proverbial "riot act" from the bench about the dire consequences of any future trespassing.

We later discovered that Jackson got the law laughably wrong -- except it's not funny when you are the victim of a judge's corrupt rulings. Here is the actual law from a case styled Chambers v. City of Opelika, 698 So. 2d 792 (Ala. Crim. App., 1996):

The appellant has cited no authority for his position that to be guilty of criminal trespass the intruder must be aware that he or she had no license or privilege to enter or to remain on the premises. There is authority, however, that states that when those premises are private and not open to the public, there is no requirement that the prosecution prove that a prior written or verbal warning was given to the intruder.

In other words, we had no obligation to warn McGarity at all. We certainly did not have to warn him in writing, as Jackson found. The same holds true for any homeowner -- or renter, for that matter. It is the would-be intruder's duty to make sure he has lawful grounds to enter. McGarity never did that, and Jackson turned the law on its head in order to reach an "acquittal."

We suspect Richard Painter has his history in order when he says efforts to distort objective truth are a sign of a totalitarian government. But our experience teaches that such efforts are not limited to Donald Trump or the presidency. Our courts -- at every level -- appear to be infested with them. We've seen that in an up close and personal way.

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